Until the arrears due on a defaulted mortgage are paid off, either through a repayment plan, selling the home, or refinancing, the bank will never give up trying to pursue a foreclosure against the owners. No matter how many attempts to take the home fail, the lender and its attorneys will always return to court, filing motions and appeals which are meant to bankrupt the borrowers or intimidate them into giving up their defenses.
Thus, even when a Motion to Dismiss a foreclosure lawsuit is successful, the best the borrowers can hope for is a few extra months to plan for their future without the threat of being evicted. The bank will have to go back to the drawing board and begin the pre-foreclosure and notification processes again, which may take several months. But the loan will end up back in court — there is little doubt of this happening.
Of course, this does not mean that homeowners should not file extensions for more time and motions to dismiss the case every time they have reason to do so. But eventually, the lender may actually comply with all of the laws in a manner that satisfies the judge in the case. Or else, the judge may just know who is paying the attorney fees and court filing fees in the case (the bank) and simply allow the lawsuit to proceed anyway.
Once this happens, the homeowners must file their answer to the foreclosure lawsuit. Every answer will have three major parts to it, along with a fourth optional part that homeowners may use if the case against the bank warrants it. These parts of the answer are statements admitting or denying the allegations of the bank, a list of defenses, a list of affirmative defenses, and any counter claims the borrowers are making which act as a lawsuit against the mortgage company.
In answering the complaint, then, homeowners will refer to a copy of the bank’s allegations and the evidence it is relying upon to make them. If they do not have a copy of the complaint, they may obtain a copy from the clerk of court. Otherwise, it will be close to impossible to admit or deny the bank’s arguments if the homeowners have no idea what those arguments are to begin with. And admitting one allegation or another does not necessarily mean the borrowers are admitting fault or that the bank has a right to take the home.
The defenses will list reasons why the homeowners believe the bank should not have filed the lawsuit in the first place. In most answers, these are presented as a list or an outline, rather than meticulously detailed. They simply put the courts and bank on notice of the defenses the borrowers will rely upon if the case goes as far as a trial. But owners do need to list every defense they will use, as they can not raise a new defense later on in the case if it was not contained in the answer or an amended answer.
Affirmative defenses are statements arguing that, while the bank may be right about one of its allegations, it should not matter for one reason or another. Thus, even though the bank may not be completely wrong in suing for foreclosure, judgment should not be awarded in its favor anyway. If the lender fails to meet notification requirements or it is the cause of the foreclosure itself (due to mortgage servicing fraud, for instance), the borrowers may be able to make the case that the bank should not be awarded a foreclosure judgment.
Counter claims act as lawsuits the homeowners file against the bank, but in the context of their answer and defense to the bank’s initial lawsuit. Any counter claims the borrowers wish to raise should be included with the answer and not “saved for later.” Once the lawsuit involving the mortgage contract has been decided, the borrowers will not have the opportunity to bring it back into court to make claims against the bank. They will have to be raised during the foreclosure lawsuit and listed in the answer for the courts to consider them.
Although it may seem like a lot of work, homeowners can put together a fairly robust defense against the mortgage company by researching a few laws and making sure they use the courts to their advantage. After a Motion for Extension of Time and a Motion to Dismiss have extended the foreclosure legal process by a period of months, it is time to get to the real work of defending the home against the bank’s lawsuit. Filing an answer is the first step here, and will put the bank on notice that it will not have an easy time of taking the property from the borrowers without making absolutely sure it has complied with all of the required laws and regulations.
Defending a Foreclosure
Step 1: Figure Out What You Want
Step 2: Play By The Rules
Step 3: Get More Time
Step 4: Research Your Options
Step 5: Who Owns the Loan and TILA
Step 6: Have the Lawsuit Dismissed
Step 7: Answer the Complaint
Step 8: The Discovery Process
Step 9: Summary Judgment
Step 10: Go to Trial
Step 11: Lose, Win, or Appeal
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